Case Detail

CACV 179/2020

[2021] HKCA 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2020

(ON APPEAL FROM HCAL NO 1609 OF 2018)

________________________

BETWEEN
	Rika Astuti	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent

________________________

Before: Hon Kwan VP, Chu JA and Barma JA in Court

Date of Judgment: 26 February 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Chu JA and Barma JA) handed down on 6 January 2021 ([2021] HKCA 10). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge K W Lung on 4 June 2020 ([2020] HKCFI 1016) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction. The applicant failed to lodge written submissions as directed. We think it appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Indonesia of 37 years old. She came to Hong Kong in 2008 as a domestic helper and last entered Hong Kong on 8 July 2011. After the early termination of her last contract, she overstayed and was arrested by the police on 14 May 2014. She lodged a non-refoulement claim on the basis that she would be harmed or killed by her father's creditor. This claim was received by the Immigration Department on 30 May 2014.

4. Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 22 December 2016. Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 26 July 2018.

5. She filed a Form 86 on 13 August 2018 to seek leave to apply for judicial review against the decision of the Board. Her application was refused by DHCJ K W Lung on 4 June 2020.

6. On 15 June 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung. Her appeal was scheduled to be heard by the Court of Appeal on 5 January 2021 but was subsequently vacated as she failed to lodge her skeleton argument by the deadline under the direction of the Registrar of Civil Appeals on 28 October 2020. The Court of Appeal dealt with the appeal on paper and dismissed it on 6 January 2021. The applicant filed a Notice of Motion on 20 January 2021 for leave to appeal to the Court of Final Appeal.

7. The applicant only stated in the Notice of Motion that she wants to challenge the decision dated 6 January 2021 without giving any specific grounds of appeal.

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9. In the present application, the applicant failed to put forward any grounds of appeal or identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10. We therefore dismiss her Notice of Motion filed on 20 January 2021 and refuse to grant leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Carlye Chu)
Justice of Appeal

(Aarif Barma)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 179 /2020

[2021] HKCA 10

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2020

(ON APPEAL FROM HCAL NO 1609 OF 2018)

________________________

BETWEEN
	Rika Astuti	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent

________________________

Before:

Hon Kwan VP, Chu and Barma JJA in Court

Date of Judgment:

6 January 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung 4 June 2020^{^[1]}. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim. The appeal is dealt with on paper due to the applicant’s failure to comply with the order of the Registrar of Civil Appeals to lodge her skeleton argument as mentioned below.

2. The applicant is a national of Indonesia. She is 37 years old. She came to Hong Kong in 2008 as a domestic helper and last entered Hong Kong on 8 July 2011. Her last contract was terminated early and she has overstayed since 13 September 2013. She was arrested by the police on 14 May 2014 and lodged a non-refoulement claim which was received by the Immigration Department on 30 May 2014. Her claim was made on the basis that she would be harmed or killed by her father's creditor.

The Director’s decision

3. By a Notice of Decision dated 22 December 2016, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk^{^[2]}, BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]} and persecution risk^{^[5]}.

4. Taking into account the absence of past intensified ill‑treatment from the creditor, the Director considered that the applicant does not have any imminent and substantial risk of being harmed or killed by the creditor if she is to be returned to Indonesia. The Director also found that there is no indication the Indonesian government has targeted on the applicant. The Director further considered that the availability of state protection and internal relocation option further lowers or negates the perceived risk of harm.

The Board’s decision

5. The applicant appealed to the Board against the Director’s decision. She was absent at the oral hearing held on 12 April 2018. The Board considered that the risk of harm to the applicant in the future should she return to Indonesia is remote. The Board also considered that the applicant would be able to obtain adequate state protection in Indonesia. Thus, the Board held that the applicant’s claim fails on all applicable grounds and rejected the appeal on 26 July 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 13 August 2018 to seek leave to apply for judicial review against the decision of the Board.

7. She put forward these grounds for her intended challenge:

(1) she was unable to submit any document during the interview but her problem is true;
(2) her enemies are very powerful and they can do any harm to her life so she needs to remain in Hong Kong until her problem is solved.

The judge’s decision

8. The applicant attended the hearing before DHCJ K W Lung on 3 September 2019. She applied for a stay of the proceedings pending the outcome of her legal aid application. The judge refused to grant a stay as the applicant failed to give any good reason for her late legal aid application. The applicant admitted before the judge that she was free to state her case before the immigration officer and submitted that she had no comments on the Board’s findings. She also agreed that it was fair for the adjudicator to assess her appeal on paper. The judge held that the applicant failed to show she has a reasonable prospect of success in her intended judicial review and dismissed the leave application on 4 June 2020.

Grounds of appeal

9. The applicant stated the following grounds of appeal in the Supplemental Notice of Appeal dated 14 October 2020:

(1) she cannot go back to her home country because she has no money to repay the loan borrowed by her father and the creditor is a powerful man who can do anything he wants;
(2) the Indonesian government cannot save her because all the officers are corrupt.

Non-compliance with order for lodging a skeleton argument

10. Directions were given by the Registrar of Civil Appeals on 28 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

11. The appeal was scheduled to be heard on 5 January 2021. The applicant failed to lodge a skeleton argument on or before the deadline of 8 December 2020. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. By letter dated 9 December 2020, the court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

12. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

13. The role of the court in a judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

14. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15. The applicant’s grounds of appeal do not constitute viable grounds to reverse the judge’s decision. In particular, the applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision. The applicant also failed to provide any evidence to rebut the Board’s findings.

16. For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Carlye Chu)
Justice of Appeal

(Aarif Barma)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1016

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

RIKA ASTUTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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